*2 WHITHAM, Before STEWART and judgment The trial court also rendered LAGARDE, JJ. Lott’s on against favor its claim Continental under its subcontract with Con- ON MOTION FOR REHEARING tinental. The court awarded its attor- neys’ fees and costs incurred successful- STEWART, Justice. ly defending the lawsuit. Continental ar- grant appellee’s We motion for rehear- gues attorneys’ that this award of fees was ing, prior opinion, our and withdraw substi- improper because no opinion opinion tute this loss. subcontract covers this Court. appeal This concerns the construction of THE AGREEMENT agreement appellant between (Continental) Company Continental Steel third-party petition appeal, and on Lott, (Lott). appellee Inc., and H.A. The Lott has based its claim for on sole agree- issue is contested whether paragraphs several in the contract between obligates ment to indemnify Continental However, Lott and Continental. we con- for Lott’s costs and incurred only provi- clude need that we consider the in its defense of claim successful based 10(a) dispose sions paragraph of this alleged negligence. on Lott’s appeal. Paragraph 10(a) provides as fol- agreement hold that the does create such lows: therefore, obligation; affirm the tri- we 10.(a) here- Subcontractor [Continental] al court’s claim. by agrees indemnify save harm- against was a less from and
Continental subcontractor Contractor [Lott] contractor, claims, demands, damages, losses, general ex- at a construction costs, Dallas, liabilities, injuries, parties’ penses, site in Texas. subcon- injury agreement provisions arising tract causes of from action damage arising whereby agreed persons property Continental of, with, out connected or incident to the Lott for certain claims work hereunder, performance of the ex- Gregory the subcontract. When work cept injured construction in cases of sole Williams was at the site, part Contractor, Company Insurance and Subcontrac- Union Standard paid compensation. workers’ tor and all such actions Williams As will defend subrogee, pay company brought against Williams’ then filed Contractor will such any judgment rendered in suits and Lott and several subcon- recoup payments pursuant will Contractor tractors to reimburse expenses includ- expenditures article Texas Re- for all section 6a of the fees, ing made or vised intervened court costs and counsel Civil Statutes. Williams plaintiff by reason of such as a his own Williams’ Contractor behalf. petition alleged through various suits. Supreme Court has not addressed
DISCUSSION question of whether argues that the the indemnitee has been applies rule 10(a) speak specifically do not negligent. following found For the in- for the *3 reasons, to extend this rule to we decline therefore, negligence; this demnitee’s covering losses which indemnity provisions paragraph violates the negli- not from the indemnitee’s do result pronounced Corp. in Ethyl doctrine gence. Co., 705, Daniel Construction 725 S.W.2d (Tex.1987). adoption 708 It that the the clear and un Cases negligence express of the doctrine was sim- rule, prior equivocal applied which ply expression one of the court’s concern negli express Ethyl adoption court’s ingeniously vague and indemni- with broad doctrine, apply rule to gence did not that be, were, ty contracts which could and con- indemnity provisions. contrary, To the all not within the con- strued to cover matters prove he if an indemnitee could was parties; templation Ethyl that the law, negligent matter of he was enti as a policy disapproving court enunciated a summary judgment claim for tled to a on a ambiguous indemnity provisions, just provided. was & which Sira to the indemnitee’s own those related Riddle, Payne 484 S.W.2d v. Wallace & that, gence; specif- and because there is no 559, (Tex.1972). Moreover, it 561 was indemnifying Lott for its ic to establish the indem- indemnitor’s burden action, defending attorney fees in duty to in negligence nitee’s to avoid the not, whether successful demnify. Eng’g Corp. v. Delta Warren held for Lott’s defense should not be liable 770, Petroleum, (Tex.App. 772 S.W.2d costs. 1984, writ ref’d n.r. —Houston [1st Dist.] e.); Serv., Inc. v. Oil Copeland Well Shell hand, on the other contends — Co., 317, (Tex.Civ.App Ethyl only court was concerned 1975, Tyler, w.o.j.). dism’d writ negli that for an indemnitee’s own gence expressly require stated analogous closely case is Copeland The ments of the Shell, the case at bar. on its facts to separate do not to the other and indemnitee, sought Cope to recover from obligations distinct the indem indemnitor, land, expenses it in nity provision; jury found Lott ultimately reason curred in negligent; was not that the defense costs negligence against it. ably settling a action were, thus, negli not incurred due to its Copeland contended that plaintiffs’ filing but due to invalid agreement was unenforceable performance claims which arose out of the unequivocal rule. The trial court clear and subcontract; of work under negligent was not found that Shell therefore, negligence express rule is amount and it both the settlement awarded inapplicable to the issue before this court. in other fees and defending plaintiff’s court curred in suit. Ethyl
We with Lott that the affirmed; Appeals it noted only liability addressed for the indemnitee’s Court of Civil sole, could not joint or con- that an indemnitor’s defense whether There, unequivocal clear and rule current. based on the negligence unless indemnitee’s caused the indemnitee had been found of indemnitee’s jury. Supreme recently casualty made the basis purpose adopting the contract. at 320. Because repeated that its suit on Id. finding negligence require Copeland failed to rule is “to obtain negli conclusively the intent establish that Shell was scriveners to make it clear when agree exculpate gent, validity an indemnitee negligence.” play, never came into and the Court for the indemnitee’s own At- ment question of Person- did not reach the whether lantic Co. v. Petroleum Richfield Inc., pro nel, indemnity agreement sufficient to tect Shell its own negligent, Id. found not then the courts Cruz, Drilling Accord Delta Co. v. Masonry, Richfield, Coast Atlantic Gulf (Tex.App. Corpus jurisdictional S.W.2d 668-69 and Adams committed error n.r.e.); ref Christi writ 'd proportions they M.M. Sundt constitutional Equip. advisory is, Constr. Co. v. 656 issued opinions; Contractors a subse- quent finding Paso mean would — El writ). no We can discern no indication unen- change forceable, court intended to the law but a finding cases; espoused in consequently, these we would in an result enforceable they validity provision. conclude that have disagree continued with Continental’s *4 express negligence under the doctrine. Ac contentions. cordingly, express negli we hold that the erroneously Continental assumes that application doctrine has to the express negligence applies the doctrine re- an duty determination of indemnitor’s to gardless the of nature indemnitee’s indemnify when is an indemnitee found not claim indemnity. for Lott’s claim is for and, thus, seeking is reimburse costs the successful defense of ment losses that do arise from not cases, a negligence claim. In the cited the consequences negligence. its of To was only issue whether the indemnitor contrary, the we do not reach the enforce would liable for judgment rendered ability issue under the against underlying in the the indemnitee seeking doctrine unless the indemnitee suit. issue This could be determined the consequences
reimbursement for its the the examining nature of claims assert- negligence. by construing ed by plaintiff the the cases, argues duty agreement.
Continental also
that
to
In
three
dependent
plaintiff’s
grounded
is not
on the outcome
was
indem-
suit
the
cases,
underlying
suit but on the nature of
nitee’s
In each of these
plaintiff
the claims that
the
to in-
duty
asserts
court determined that
Masonry
demnify
indemnitee.
of the indem-
See
Coast
v.
Gulf
Owens-Illinois,
Inc.,
239,
negligence would
arise
739 S.W.2d
239 nitee’s own
never
(Tex.1987);
allegedly
indemnity provision
Atlantic
Co. v. Pe
because the
Richfield
Personnel, Inc.,
did
covering
type
758
loss
not meet
troleum
S.W.2d
this
1988),
(Tex.App. Corpus
requirements
844-45
Christi
ad-
grounds,
on other
S.W.2d 724
Because none
these suits
rev’d
doctrine.
(Tex.1989);
Spring Valley
v.
dressed the indemnitor’s
Adams
Co.,
negligent,
con-
indemnitee is found not
we
Constr.
n.r.e.).
issue
they
inapplicable
ref’d
Other
clude
are
to the
—Dallas
writ
wise,
contends,
it
the courts in these sum
before
court.
this
would
have
mary
cases
not
ruled
that,
next
because
Continental
indemnity provisions
at
issue unen
Lott’s
based on
underlying
express negligence doc
forceable under the
allegedly
claim
excluded
respec
trine before the
ex-
the indemnification
clause
had
determined.
tive indemnitees
been
test,
press negligence
is not entitled
Therefore,
this
maintains
because
defending against this
recover its costs
underlying
neg
suit is
on Lott’s own
based
claim.
It maintains
noncovered
ligence,
closely analogous to
duty
indemnify is
renders
unenforce
context,
insurance
duty
defend
an
able, and the fact that Lott was found not
depends on
duty to defend
where the
bearing
duty
negligent has no
on its
allegations
plaintiff’s pleaded
whether the
indemnify.
coverage
scope of
outside the
are within or
allegations are
and if
policy,
if
Continental further asserts that Lott’s under
coverage,
is no
scope
there
correct,
theory
duty
that the
indemni- outside
defend, regardless outcome
duty
fy case did
arise until
was covered
that Williams’ claim
Ins. Co.
Argonaut
of the suit.
Southwest
Lott was
indemnity agreement. Because
Maupin,
negligent, we need not address
found not
duty to defend is
a defense based
the effect
dependent on the outcome of the suit
would have on
express negligence doctrine
asserted
upon the nature of the claim
litigation
costs.
right
Lott’s
to recover
however,
disagree
we
plaintiff;
allegations
duty to
plaintiffs
determine the
Nevertheless,
contends
Instead,
indemnify.
litigation
for Lott’s
it is not liable
the indem
is determined from the terms of
specifi
are not
expense
these costs
nity agreement.
v. Amo
Ideal Lease Serv.
However,
agreement.
cally
by the
covered
(Tex.
co Prod.
litiga
otherwise.
Texas law dictates
contracts,
1983).
construing indemnity
indemnified
costs for
applicable guidelines are well estab
upon
either
may
claim
be recovered
is to
primary
concern of courts
lished.
implied by law or
un
give effect to the inten
ascertain and to
in-
because otherwise
der the
expressed
in the
tions of the
fully protected and
not be
demnitee would
*5
Those intentions are de
instrument.
Id.
against
by
covered
harmless
claims
saved
applying the same rules of
termined
Fisher,
agreement.
indemnity
applied
are
to other con
construction as
requirement
is no
at 211. There
Id.;
Riggs,
tracts.
Fisher Constr. Co.
expressly stipulate that
agreement
that the
(Tex.Civ.App.—Hous
indemnified; they are
these costs are
ton),
160 Tex.
grounds,
rev’d on other
arising
personal
a
expenses or costs
from
(1959). However, the in
recoup payments its pursuant article agreed 8307, section 6a of the Texas Revised Civil issue would until be reserved after the trial Intervening plaintiff Statutes. as a in against his on Williams’s claims Lott. After behalf, alleged in petition trial, Williams his jury two-week found that Lott through various acts and was negligent. The trial court entered omissions, proximately Lott had judgment caused his that Williams and Union Stan- trial, injuries. against Prior to the claims dard all Insurance take and taxed all the other were defendants either against sev- costs The trial them. court also or ered dismissed. did Williams not sue in judgment rendered Lott’s favor on Continental; however, joined Conti- against claim Continental under as a party nental third on a claim of subcontract, indem- their awarding Lott its attor- nity. ney successfully fees and incurred in costs argues the lawsuit. Continental paragraph In II party peti- of its third that this im- award of fees was tion, Lott asserts: proper in because no plaintiff, In event the Union Stan- the subcontract covers this loss. (Union) Company dard Insurance makes any recovery against cause, Lott in this THE AGREEMENT against
Lott is entitled to Con- judg- tinental for the full amount of such Lott based its claim ment, together with reasonable attor- following provisions in the contract be- ney’s costs, fees and in- ... tween Lott and Continental. demnity provisions 10(a) [paragraph and 10.(a) Subcontractor here- [Continental] “Attachment the con- A”] by agrees and save harm- tract between Lott and Continental. less from Contractor and [Lott] Lott, therefore, demands, sought indemnity claims, losses, ex- damages, for its III, costs, liabilities, penses, injuries, arising per- injury employees causes action from of Subcontractor persons damage property arising or formance of said work. of, with,
out connected or incident hereunder, performance ex- work employ 20. Should Contractor an attor- cept in cases of sole on the ney any to enforce here- part Contractor, and Subcontrac- of, any protect or to its interest matter any tor will defend and all such actions contract, prose- or under this brought against pay Contractor and will any resulting cute or defend any judgment rendered in such suits and contract, surety or to recover will reimburse and Contractor given by bond Subcontractor under this expenditures for all or includ- surety, Subcontractor and his fees, ing court costs and counsel made or jointly severally, agree pay Con- Contractor reason of such costs, charges, tractor all reasonable ex- suits. penses attorney’s expended fees or ,1 incurred therein... “A” ATTACHMENT I. Subcontractor will ob- [Continental] DISCUSSION safety serve Contractor’s basic [Lott’s] A” that “Attachment policy applicable provisions and all provide of the subcontract will not a basis Occupational Safety and Health Act of contingent it is on a thereto, regulations 1970 and the Continental, agents, employ- breach Article 5182-1 of the Texas Revised Civil ees, materialmen, subcontractors, of its maintaining Statutes and shall assist obligation safety precau- to take certain working conditions which free of un- are tions set out that clause. Continental hazardous, sanitary, dangerous condi- urges that because there is no evidence of protecting tions and shall assist in jury finding such a and no breach safety health and laborer or me- issue, support will not employed performance chanic in the indemnity. award on this Contract. Subcontractor shall in- *7 demnify and save harmless the Contrac- argues Lott A” and that “Attachment tor liability and Owner from all and/or 8(a) paragraphs provide proper and 20 loss, limit, without incurred in or whole basis for under the subcontract part, directly indirectly, or as a result agreed, para- because Continental any obligation breach of this by Sub- 20, graph attorney to reimburse Lott for contractor, agents, employees, materi- spent by any “arising fees Lott in lawsuit almen, and subcontractors. “resulting under” or from” the contract 8(a) argues paragraphs and further appeal, re-urges provi- On Lott those two and, additionally, urges imposed sions as a further and “Attachment A” on Continen- tal, keep basis for its the follow- the construc- ing provisions: tion site safe. Lott asserts that because alleged petition insurance carrier
8.(a) comply Subcontractor shall with all failing that Lott was federal, to take laws, codes, municipal state and precautions safety for which Continental regulations and ordinances effective subcontract, responsible where the work under this contract is to “arising Lott was forced to defend a suit performed, pay all and to sales and or “resulting under” imposed from” the contract. use taxes and contributions Consequently, Lott that an award required by any any employment law for asserts insurance, pensions, age proper. argues Lott old retirement funds, respect “express negligence purposes, or similar doctrine” does not seeking the work under this contract and the here Lott re- paragraph County, 1. The last sentence of 20 reads "Sub- contract must be filed in Harris However, Texas." agrees contractor filed under the issue of venue was not raised. 520 damages agreement
imbursement based on its is unenforceable. but, rather, negligence seeking reim- Ethyl, the Supreme changed Court bursement for fees incurred in rules concerning the construction and en- “arising a suit under” or “result- indemnity provisions. forcement of The ing Relying from” the primarily contract. parties seeking held that to indemni- argues on federal authority, be- fy the indemnitee from the negative finding cause of jury’s negligence express its own must that intent negligence, no need there is to reach the specific terms the four within comers of 10(a) complies issue of whether Ethyl, contract. with doctrine. Intent to shift the burden indemni- negligence tee’s to an indemnitor must Conoco, Inc., Meloy
Lott relies on
v.
817
specifically stated in the
(5th Cir.1987);
instrument. See
F.2d 275
O’Neal v. Interna
Masonry,
Coast
Inc. v.
Co.,
(5th
Owens-Illi-
F.2d 199
Paper
tional
715
Cir. Gulf
nois, Inc.,
239,
(Tex.1987).
739
1983);
S.W.2d
239
Co.,
v.
Stephens
Chevron Oil
express
negligence
(5th Cir.1975).
adopted
522 negligence served, of the by negatively conclusions law that of a stating is not what to Copeland employee proximate the sole indemnified, opposed be as affirmatively to death, cause of Johnson’s and further stating indemnified, provi- what is to the be agent, servant, employee, found that implicit sion is an indemnity agreement re- of Shell committed act of quiring to deduce full its obli- which contributed to cause the death of gation negligence exception. from the sole Further, Johnson. the trial court found See Atlantic 768 Richfield, S.W.2d at 725. personnel supervisory Cope that “the of Consequently, I conclude that if the obli- appreciated danger” land knew and the cre gation of indemnitor is to be found the the Copeland employee’s negli ated proof an exception, of then the factual gence, prior and that several occa “[o]n of specifically intent the is not stat- representatives sions Shell’s had warned agree- ed the corners within four of the Copeland’s supervisors, ..., danger of the ment; thus, under and Atlantic who, turn, [Copeland’s employ advised and, Richfield, ambiguous the is Here, danger.” neither Lott nor ee] law, as a matter of Wheth- unenforceable. negligent. In Continental was found holding Ethyl er the is to be viewed as deed, Continental was not even sued evolutionary revolutionary, I conclude Williams. Even in Patch v. Amoco Oil that it has shifted burden to indem- (5th Cir.1988)(inter F.2d show, affirmatively, nitee that the in- law), preting by majori Texas relied on thus, demnity provision unambiguous, is ty, if the court seems intimate in- enforceable; longer it is no of burden is found demnitee to be indemnitor, by proof of an ex- factual negligent, is then indemnitor indemnitee is ception, to it is show that unenforceable. entitled indemnification. This is not the words, Ethyl, In other the enforce- Further, Copeland case here. was cited ability ques- is a Barnes, followed the court law, question not a of fact. however, 995; Barnes, rejecting F.2d at the lan- Continental further stated, Supreme in Ethyl Texas 10(a) guage precludes adoption “[0]ur vague because it is too award reasoning necessarily rejects test and, generalized language in its there- (em S.W.2d Barnes.” at 707 fore, express negligence doc- violates the supplied.) phasis is so conclude that this hand, argues that, On the trine. other is test indemnity agreement if is not even construction, rule of contract not an affirm enough upon specific to confer it ative defense. See Monsanto Co. v. Owe indemnified for the ns-Corning Corp., Fiberglass here that is irrelevant [1st Dist.] — Houston seeking recovery in because it is not such a writ). Further, 1988, no an Continental’s Indeed, emphasizes that in this case. denying is swer express record us there before provi put validity sue negligent. jury finding that Lott was not issue, thereby requiring sion into Lott to provi establish Indemnity is “derivative action” conclude, therefore, sion. See id. independent City cause of not an action. Copeland inapplicable. Watson, 23, 33 Houston v. of (Tex.Civ.App. ref’d writ Further, if rule is — Houston conclude n.r.e.). Apparently majority defense, I con- to be construed as a then finding negative that it derives from adoption to re- clude that stated, reasons earlier For plethora brought duce the of lawsuits derive, if must so then the ambiguous indemnity provisions. construe *10 law, cannot, be provision a matter of Implicit holding in the in as Ethyl, as clarified the ex I that under in is that enforceable. conclude Richfield, Atlantic to be enforce- test, of able, press negligence the provision unambiguous. enforceability the must “derive” indemnity provision As the court in ob- must Atlantic Richfield expressed ty provision dependent. intent of as is not so To the agreement. contrary, enforceability agree- within the four comers of the If ment is to be found the four expressly covers within comers of the contract. pleaded against the cause of action Arguing indemnitee, apply, that Adams does not provision then the is enforce able; correctly points proce- not, out that Adams is if it it is unenforceable as a durally distinguishable this court enforceable, because right matter of law. If summary judgment rendered for the in- indemnity then derives from either a loss liability before the demnitor of the indemni- liability suffered the indemnitee. Nevertheless, tee was determined. I con- Here, however, that issue is not reached. significant clude that Adams is in argues, soundly I and think that instance this court looked na- so, context, in if by analogy, asserted, ture the claims determined of coverage for policy insurance excludes def- negli- claims solely were based on insured def- amation and the is sued for gence, applied rule defense, amation is successful recovery and denied to the indemnitee. coverage cannot then claim for its costs of holding Our in Adams was not conditioned reasoning the suit. find this finding negligence a as a matter of persuasive. reality, In a contract of indem- law, finding nor was it conditioned on a nity very is similar to a contract of insur- simply a lack of looked to Eng’g Corp., ance. Delta 668 S.W.2d at the nature the claims rather asserted 773. than ultimate determination as to Thus, view, my presents this case gence reaching our decision as to the following express negli issue: when the enforceability provision. deny doctrine works to indemnifica Similarly, Masonry, Coast Gulf tion for the of the indemni- Supreme S.W.2d at the Texas tee’s own does it also work to applied doctrine and bar indemnification for the in recovery to denied an indemnitee based curred an indemnitee in the successful the claims asserted before the indemnitee’s negligence defense of a action based light liability had been determined. In negligence? Logic pre on its own and the supreme court’s treatment of Gulf vailing binding authorities dictate that the our focus Masonry, Coast conclude that question answer to the yes. above is properly upon is claims asserted. Spring Adams v. Valley Construction jury fact that a found a lack of — Dallas part change of Lott does not n.r.e.), applied writ ref 'd we the ex enforceability indemnity agreement. press negligence theory, Under Lott’s courts would re- provision, holding that the quired liability to await a final determina- sufficiently specific in- to entitle the duty tion in order to determine the to de- demnitee to indemnification for the conse Consequently, summary judgment fend. quence negligence. Interesting of his own granted as in Adams and Ma- Coast Gulf ly, argues that in the con inappropriate. sonry would be text, context, right unlike the insurance Further, interpre- I conclude that such an does not accrue until after a determination agreement is tation of this made; however, here Lott strengthened by “duty the inclusion of the right that its accrued case, provision. to defend” In this upon negative negli a determination as to context, only plaintiff’s the insurance gence. allegations pleaded are considered to deter- While duty Argonaut mine to defend. See does not accrue until after a determination Maupin, Southwest Ins. Co. v. made,
of either loss or City see Logically, Houston, depend upon S.W.2d at the determi- cannot the truth or defend allegations nation of the of the indemni- ultimate success of the assert- *11 ed; otherwise, circumstances, pri- breach would occur not for purposes duty or to the time the comes into exist- varying adding to the contract but in Moreover, ence. interpreta- under Lott’s order to find out the intention with which agreement, Continental, tion of this the words are used. Joe Adams & Son v. party duty with defend would McCann Constr. 475 S.W.2d have having a financial incentive in (Tex.1971). and, found consequently, a finan- applying criteria, In the above I note that vigorously cial disincentive to defend. I provisions in addition to the previously find those results untenable. concerning mentioned indemnity, the sub- reasoning Lott asks us to follow contract contains still another the federal court in Stephens, 517 F.2d at provision in paragraph whereby eleven reject the financial no- incentive agrees to indemnify Lott for tion parties based on the rationale that the expense all loss and incurred Lott re- adequately can deal with these issues sulting from claims or infringe- suits for initially bargaining in- over the terms of patents patent ment of or violations of demnity. I why see no reason this ratio- rights by In paragraph Continental. seven- ways. nale does not work If both indeed teen, language there is that Continental parties intent of the is to will, expense, at its cost including in only defense of a suit fees, counsel any defend suit filed if and when a claimant is exonerated of labor, it for a claim or lien for services alleged negligence, I why see no reason purchased materials used or use parties just easily adequate- cannot deal work covered the contract. ly initially bargaining with this issue when conclude, therefore, over the terms of the contract. I reading light contract as a whole of the above urges appeal for the first time on criteria, language in para- paragraph pro 20 of the subcontract graph parties 20 was intended vides a basis for the I award. apply to a contract cause of action and not can find the record before us to action, to a cause presented indicate that this issue was ever Consequently, paragraph would so hold. to the trial court. The record us before provide 20 can no basis for the trial court’s findings contains no of fact and conclusions award of fees for defense of a It is nonjury law. well settled that in a cause of action based findings trial where of fact and conclusions alleged negligence of Lott. properly requested of law are not and none filed, are of the trial court upheld
must affirmed if it can be SUMMARY legal theory support that finds in the evi then, summary, based above Bliss, dence. Lassiter v. 559 S.W.2d discussion, express neg- I conclude that the (Tex.1977), Seaman, citing Seaman v. and, ligence applies satisfy test failure to (Tex.1968). Therefore, that test renders the I would consider 20 as a basis as a matter of As to unenforceable law. Interpretation for the award. A,” paragraph 10(a) and “Attachment is a matter of law. interpretation in- conclude that an general relating rules to the construc demnity provisions necessarily re- which applicable tion of contracts are to indemni potential sults breach before a ty contracts. seek the We must intention exists, interest, as well as a conflict of language from the used in post- untenable. further conclude that Enterprises contract. R P & LaG uarta, Kirk, Inc., Ethyl, when the issue of is con- Gavrel & tested, 518-19 All of the indemnitee has the burden lan guage satisfying test used is to be considered. Considera given may subject adopted by thereby to the matter of the court surrounding establishing the contract facts and of the in- *12 demnity provision. express neg- When the
ligence deny doctrine works to indemnifica- indemni-
tee’s own it likewise works expenses incurred
deny indemnification for of a an indemnitee the defense on the indemnitee’s own action based
alleged negligence. Specifically, I would
hold that the of the indemni-
ty question provision is a of law determined specific intent of
expressed within the four corners of the Further,
agreement. I would hold that in
interpreting indemnity agreement con-
taining “duty provision, to defend” looking to defend is determined asserted,
the nature the claims negligence. the ultimate determination of
Further, conclude that
applies only to an action based in contract to this action based
solely alleged negligence; on Lott’s Consequently,
would so hold. I would re- judgment
verse the of the trial court inso- Lott;
far as it awards in favor of judgment would render take on its claim for
incurred in successfully defending a suit allegations
based of Lott’s own respects, In all other I would
affirm the of the trial court.
Larry DENNIS, Appellant, Texas, Appellee.
The STATE of
No. 09 88 153 CR. Texas, Appeals
Court of
Beaumont.
May 1989.